The Longest Legal Holiday: COVID-19 and its Effect on Prescriptive Periods and Legal Deadlines
The COVID-19 pandemic has posed unprecedented and vexing dilemmas for legal practitioners. Among the most confounding for Louisiana attorneys is the status of prescriptive and peremptive periods (known as statute of limitations periods in other states) and legal deadlines that would have otherwise expired during the months long period in which the statewide stay-at-home order was in effect and most courts, firms, and businesses were closed or restricted. What happens, for instance, to the plaintiff whose claim would normally have been time-barred on April 1? What about the litigant whose Appeal Brief was due on May 20?
Although Governor John Bel Edwards and Louisiana courts have enacted measures to suspend and/or delay these periods and deadlines, questions persisted as to their authority to do so and the effect of their orders. A recent law passed by the Louisiana legislature and signed by Governor Edwards, however, may finally shed some clarity on these types of questions. In essence: if a legal deadline that would have applied under normal circumstances fell between March 17 and July 5, it will now likely be extended until at least July 6.
Governor Edwards' Suspension Orders
Governor Edwards' March 17 proclamation provided that "legal deadlines, including liberative prescription and peremptive periods applicable to legal proceedings in all courts, administrative agencies, and boards, are hereby suspended until Monday, April 13, 2020."1 The order specifically applied to periods and deadlines arising under statutory authorities, including (but not limited to) the Louisiana Civil Code and Louisiana Code of Civil Procedure, as well as "all other deadlines in legal proceedings in all courts, administrative agencies, and boards." Governor Edwards extended this "suspension" order several times. Most recently, on June 4, Governor Edwards extended the "suspension" of liberative prescription and peremptive periods through July 5, and most other legal deadlines through June 15.2
The Governor's orders ostensibly aimed to ensure that litigants unable to pursue their claims during the pandemic do not unfairly lose their rights to relief. Still, concerns arose over the enforceability and impact of these orders. For instance, it remains unclear whether the authorities on which Governor Edwards relies for his proclamations3 empower the governor to override periods and deadlines established by statute unless the Louisiana legislature later ratifies the orders.
The interpretation of the word "suspension" presents another concern. The Louisiana Civil Code's definition of suspension provides that the period of suspension "is not counted toward accrual" and commences again when the suspension ends.4 It is comparable to pressing "pause" and then "start" on a running stopwatch: if a litigant has three more months to bring a claim when a period of suspension begins, they will have an additional three months once the period of suspension ends.5
However, most courts have issued orders providing that legal deadlines otherwise arising during the suspension period simply be shifted forward to the first business day after the period of suspension concludes.6 This approach equates the period of suspension to a months-long legal holiday. Under this interpretation, in the same way a deadline or period expiring on a Saturday is typically pushed forward to the following Monday, a deadline falling during the COVID-19 "suspension" period is pushed forward to the first "non-suspension" day.
2020 La. Act. No. 162
Given the uncertainty over the scope of the Governor's authority and the tension between the codal definition of suspension and most courts' "long legal holiday" interpretation, the absence of any action by the Louisiana Legislature could have generated confusion and conflict over the timeliness of claims, actions, and filings. But an act recently passed by both houses of the Legislature and signed into law by the Governor may provide concrete guidance to litigants.7
The Legislature has opted for the "long legal holiday" approach. Under the law proposed by the act,8 all "prescriptions, including liberative, acquisitive, and the prescription of nonuse, abandonment periods, and all peremptive periods"9 that otherwise would have expired from March 17, 2020 through July 5, 2020, now expire on July 6, 2020.
The law applies an equivalent rule to deadlines in legal proceedings,10 extending the "suspension" through July 5.11 In this respect, the law conflicts with the Governor's most recent proclamation, which terminates the suspension for deadlines other than prescriptive and peremptive periods on June 15. Legislation serves as the primary source of law in Louisiana, however, and the Act does state that its provisions "shall preempt and supersede but not repeal any provision of the Civil Code or any other provision of law to the extent that such provision conflicts with the provisions of this Act."
In light of the confusion wrought by the COVID-19 pandemic, disputes over the timeliness of claims and deadlines will almost certainly arise. Nonetheless, the Act passed by the Louisiana Legislature does clarify and simplify the calculus for litigants attempting to timely seek relief (or, conversely, argue against the timeliness of an adverse party's action). The bottom line: most legal deadlines that would have elapsed between March 17 and July 5 should arguably be extended until at least July 6, 2020. Litigants should further remember in the coming weeks that they may continue to submit filings during the legal deadline "suspension."
The chart below details the expected effect of the Act on legal deadlines.
1Proclamation 30 JBE 2020.
2Proclamation 75 JBE 2020.
3The Louisiana Homeland Security and Emergency Assistance and Disaster Act (La. R.S. § 29:721 et seq.) the Louisiana Health Emergency Act (La. R.S. § 29:761 et seq.).
4La. C.C. art. 3472.
5See Brown v. Thuc Bao Thi Tran, 2009 1117 (La.App. 1 Cir. 12/23/09); 25 So. 3d 250 (holding that executive order "suspending" prescriptive period with ten days remaining afforded litigant an additional ten days to sue after suspension ended).
6See, e.g., Louisiana Supreme Court's May 15, 2020 Order, https://www.lasc.org/COVID19/Orders/2020-05-15_LASC_DEADLINES.pdf ("All filings which were or are due to this Court between Thursday, March 12, 2020 through Friday, June 5, 2020 shall be considered timely if filed no later than Monday, June 8, 2020.").
72020 La. Act. No. 162.
8The Act declares that the governor's proclamations regarding legal deadlines "are hereby approved, ratified, and confirmed subject to the provisions of this Part."
9Under the Act, the suspension would not apply to "the prescription of nonuse applicable to mineral servitudes, mineral royalty interests, and executive rights which shall be governed by the Louisiana Mineral Code."
10Certain exceptions apply for actions involving leases and partition of property.
11The Act would allow a party to seek a further extension to no later than September 1, 2020 if the party can establish that they or their attorney was adversely affected by the COVID-19 emergency.